Notice of cross-appeal (intellectual property) (Form 93)

Division 34.3 of the Federal Court Rules 2011 governs appeals from decisions of the Commissioner, which means the Commissioner of Patents, the Registrar of Trade Marks or the Registrar of Designs (r 34.21). A respondent who wants to appeal from the decision, or part of it, that the appellant has appealed from must file a notice of cross-appeal in accordance with Form 93 (r 34.28(1)). It must state whether the cross-appeal is from the whole or part of the decision, the orders sought, the grounds for each order and the particulars of each ground (r 34.28(2)). Evidence and submissions are limited to grounds and particulars stated in the notice (r 34.26).

When you need it

• You are the respondent to an IP appeal (Form 92) and want the Commissioner's or Registrar's decision changed in your favour, in whole or part.
• Not if you only want the decision upheld on other grounds: file a notice of contention in Form 77 (r 34.29).

1. 1

   Heading

   Insert the title or office of the decision-maker in the 'On appeal from' line and copy the file number and parties from the notice of appeal. Leave the Registry's section blank.

2. 2

   The decision

   Identify the decision appealed by the appellant (decision-maker, date, place and what was decided), then say whether you cross-appeal from the whole or part, giving details of the part.

3. 3

   Orders sought

   State each order you seek.

4. 4

   Grounds and particulars

   Give the grounds for each order and full particulars of each ground. Patent grounds based on prior publication, prior use or lack of utility need the particulars in rule 34.27.

5. 5

   Address and service

   Give your address for service and residential or business address, choose the service option, then date and sign.

• File within 21 days after you were served with the notice of appeal (r 34.28(3)). A filing fee may apply - check the current fee schedule.
• Within 5 days after filing, serve it on the Commissioner, the appellant and any other party to the cross-appeal (r 34.28(4)).
• File through eLodgment or at a Registry.

• Plead every ground you may want to run; unpleaded grounds or grounds without particulars cannot be relied on (r 34.26).
• The Intellectual Property Practice Note expects the key documents, such as the application or registration and the written decision, to be filed before the first case management hearing.